(영문) 수원지방법원 2011.12.8. 선고 2011구합1796 판결

On January 18, 2010, the defendant confirmed that the part of the confirmation of the loss of insured status for employment insurance against the plaintiff is invalid among occupational categories (in non-related positions), the date of loss (in September 29, 2009), and the grounds for loss (in the case of disciplinary action).

Reasons

1. Details of the disposition;

(a) First dismissal;

1) The Plaintiff was employed and worked for B Co., Ltd. (hereinafter “B”) on November 2007, and was dismissed on April 4, 2009 on the ground of the abolition of the department in charge (hereinafter “the first dismissal”).

2) Accordingly, the Plaintiff filed an application for unfair dismissal with the Gyeonggi Regional Labor Relations Commission, and the said Labor Relations Commission rendered a decision to the effect that the first dismissal on August 24, 2009 would be unfair and that the Plaintiff would be dismissed. B, dissatisfied with the above order of remedy, filed a request for reexamination with the National Labor Relations Commission on November 16, 2009, but the said request was dismissed on November 25, 2009.

(b) Second dismissal;

1) B notified the Plaintiff of his/her reinstatement in accordance with the above order of remedy, and was subject to disciplinary action on September 29, 2009 on the ground that the Plaintiff was absent from office without permission for 15 days from September 14, 2009 to September 28, 2009 (hereinafter “the second dismissal”).

2) On December 28, 2009, the Plaintiff filed an application for unfair dismissal with the Gyeonggi Regional Labor Relations Commission on the second dismissal, but the application was dismissed on February 26, 2010, and the application for reexamination was also dismissed on June 7, 2010, although the Plaintiff filed an application for reexamination with the National Labor Relations Commission, but the application for reexamination was also dismissed on June 7, 2010. The Plaintiff dissatisfied with the application, filed a lawsuit seeking revocation of the said decision for reexamination as Seoul Administrative Court 2010Guhap27950, but lost.

C. On April 3, 2009, on the ground that the occupational code at the time of acquisition of the insured status was different from the actual duty, the Plaintiff filed a claim for confirmation of the insured status of the employment insurance, but the Defendant dismissed the said claim on April 22, 2009. D. The second claim for confirmation and the instant confirmation disposition

1) On December 15, 2009 following the second dismissal, B reported the loss of insured status to the Defendant on September 29, 2009 on the ground that the Plaintiff’s loss of insured status was a disciplinary dismissal due to absence from office without permission.

2) After that, on January 11, 2010, the Plaintiff requested the Defendant to verify the insured status of the employment insurance (hereinafter “the second claim for verification”), and the Defendant notified the Defendant of the date of deprivation of qualification on January 18, 2010, as of September 29, 2009, the occupational category as security-related position, and the result of the claim for verification of the insured status, which would punish the cause of loss (hereinafter “instant disposition”).

3) The Plaintiff filed a request to review the instant disposition with an employment insurance examiner on May 10, 2010, but the request was dismissed. While the Employment Insurance Review Committee filed a request for review, the request was dismissed on November 8, 2010.

[Ground of Recognition] Facts without dispute, Gap evidence Nos. 14, 17, 24, Gap evidence No. 25-1, Eul evidence No. 1 through 4, 8, 14, 18, 20 through 25, 27, and 28, each of the statements and the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's assertion

1) From November 26, 2007, although the Plaintiff was in charge of the sewage business for auction (such as the receipt and confirmation of the quantity carried in to the wholesale market) at the auction room of the B B from November 26, 2007, the Plaintiff was in charge of the security-related business that does not exist in the B’s business plan or the rules of employment. Thus, it is unlawful.

2) On September 29, 2009, the part regarding the date of loss ( September 29, 2009) in the instant verification disposition was withdrawn by B from the Plaintiff’s application filed on September 29, 2009, and the first dismissal order was confirmed.

As a result, the Plaintiff’s loss date of insured status cannot be seen as September 29, 2009. However, it was unlawful since September 29, 2009.

3) Of the instant confirmation disposition, the part pertaining to the grounds for loss (Disciplinary dismissal) in the instant disposition is unlawful on the premise that the second dismissal is legitimate, notwithstanding that the second dismissal is unfair due to defects, such as B’s failure to properly notify the Plaintiff of reinstatement in accordance with the above order of remedy.

4) The Defendant did not notify the Plaintiff of confirmation under Article 11(2) of the Enforcement Decree of the Employment Insurance Act and Article 13 of the Enforcement Rule of the same Act on the Plaintiff’s claim for confirmation of the first and second verification claims. The Defendant’s notification of confirmation (Evidence A25-1) alleged by the Defendant is not about the Plaintiff’s second confirmation claims, but merely about the notification of the fact of report B. Even if the Defendant notified of confirmation, it was not only deemed that the period for processing was more than seven days, but also that the Defendant took the same disposition as the instant confirmation disposition on February 10, 2010.

5) Due to the foregoing defects, the occupational category of the instant disposition (related to security), the date of loss ( September 29, 2009), and the part of confirmation of grounds for loss (Disciplinary dismissal) are null and void.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) We examine the occupational part of the instant confirmation disposition.

According to the statements in Gap evidence Nos. 6, 7, 11, 12, 13, 27, 28, and Gap evidence Nos. 3, 15, and 23 and witness Eul's testimony, it is recognized that Eul paid security and control personnel advertisement to the D market at the time of employing the plaintiff, the plaintiff's employment contract also is a kind of work (including control work) security service, and the first advance notice of dismissal against the plaintiff is also an order of the first advance notice of dismissal against the plaintiff, and that at the time of the business trip investigation by the public official belonging to the defendant, the plaintiff's volunteer worker also confirmed that the plaintiff's main duties are guard and control, and the sewage duties are incidental to the plaintiff's main duties and duties. And even if this is not specified in the B's business plan or rules of employment, Eul may employ a relevant security personnel depending on its needs. Therefore, this part of the plaintiff's assertion on the premise different from the above facts is rejected.

2) We examine the part on the date of loss in the instant confirmation disposition.

According to Gap evidence Nos. 15, 16, and Gap evidence No. 21, after the second dismissal, Eul requested the defendant to correct the date of loss of the plaintiff's insured status from April 5, 2009 to September 29, 2009 after the date of loss of the plaintiff's insured status, and it was recognized that Eul withdrawn the above application on November 16, 2009, and thereafter submitted a report of loss as of December 15, 2009 with the date of loss of the plaintiff's insured status as of September 29, 2009 and as of November 15, 2009.

However, in rendering the instant confirmation disposition, the Defendant appears to have confirmed the date of loss of the Plaintiff’s insured status as of September 29, 2009, which was the date of the second dismissal, by reflecting both the grounds asserted by the Plaintiff, including the fact that the first dismissal is unfair in accordance with the remedy order issued by the Gyeonggi-do Regional Labor Relations Commission and the withdrawal of the said corrective application by B, and further reflecting the newly reported content on December 15, 2009, the Plaintiff’s assertion on this part is rejected.

3) We examine the part concerning the reason for loss in the instant confirmation disposition.

According to Article 17 of the Employment Insurance Act, Articles 11(1) and 115 of the Enforcement Decree of the same Act, Article 145(1)3 of the Enforcement Decree of the same Act, and Article 12 of the Enforcement Rule of the same Act, where a person who is or was an insured makes a request for verification of the acquisition or loss of the insured status, he/she shall submit a written request for verification of the insured status of employment insurance and documents capable of verifying it, and the defendant delegated with the authority by the Minister of Labor shall confirm it. Meanwhile, where the dismissal is null and void without justifiable cause, any person may deny the validity of the dismissal. However, the validity of the dismissal is revealed through a request for remedy to the Labor Relations Commission, a request for revocation of the dismissal decision, or a request for confirmation of the invalidity of the dismissal decision, and thus, it cannot be deemed that the defendant has the authority or obligation to examine

If so, in the situation where there is a dispute over the validity of the second dismissal between the plaintiff and B, unless there is any evidence such as a conclusive judgment clearly denying the judicial effect of the second dismissal until the time of the instant confirmation disposition, it cannot be deemed unlawful on the ground that the defendant did not render a judgment that the second dismissal was invalidated only by the materials, etc. submitted at the time of the confirmation office. Accordingly, the plaintiff's assertion on this part is rejected.

4) We examine whether there is a procedural defect in the instant confirmation and disposition.

A) According to Article 13 of the Enforcement Rule of the Employment Insurance Act, when the Defendant notifies the applicant, etc. of the result of confirmation on the acquisition or loss of insured status, the employer shall report the matters concerning the loss of insured status of the employed worker pursuant to Article 15(1) of the Employment Insurance Act and Article 6(2) of the Enforcement Rule of the same Act. In such cases, the Defendant shall notify the insured, etc. thereof in accordance with attached Form 13.

However, according to the evidence Nos. 21, 22, and 25-1 and 2 of the evidence No. 25, the defendant, on January 18, 2010, notified the plaintiff of the instant verification disposition, accompanied by a notice of the fact that he/she reported the loss of insured status under the attached Form No. 13, and separately sent the notice of the fact that he/she reported the loss of insured status under the attached Form No. 13 to the plaintiff on February 10, 2010. According to the above, the defendant erred by misapprehending that he/she should report the loss of insured status under the attached Form No. 22 while issuing the instant verification disposition on January 18, 2010, and it appears that the defendant notified the plaintiff of the fact that he/she reported the loss of insured status under the attached Form No. 13 to the plaintiff on February 10, 201, and both the attached Form No. 13 and No. 22 should be deemed as having been attached to the above defect.

B) According to the statement in Gap evidence No. 24, it is recognized that the processing period is 7 days on the upper right side of the claim for confirmation of insured status, and as seen earlier, the date when the plaintiff filed the second claim for confirmation was made on February 11, 2010 (the date when the written claim was made on February 10, 2010, but the date it was received to the defendant on February 11, 2010). The defendant notified the plaintiff of the confirmation disposition of this case on February 18, 2010 where seven days have not passed since the defendant notified the plaintiff of the confirmation disposition of this case. Thus, the processing period was observed.

C) The instant disposition pertains to the second claim for confirmation, and whether the Defendant notified the result of the first claim for confirmation, or whether it is legitimate or not, is irrelevant to the legitimacy of the instant disposition for confirmation.

D) Therefore, the Plaintiff’s assertion on procedural defects is rejected.

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit.